Faris Nasrallah, Gordon Blanke
Abstract This chapter discusses the conduct of arbitral proceedings under the Rules. The conduct of the arbitral proceedings is key to the perception, by the parties, of the arbitration process as balanced and fair. It requires the Tribunal to manage the parties’ legitimate expectations with respect to their participation in the arbitration process and the Tribunal’s exercise of its decision-making powers and of the margin of discretion conferred upon it in the exercise of its powers under the Rules. This chapter starts with the separability of the arbitration agreement and the scope of the Tribunal’s proper jurisdiction, exploring also the core objective that informs the conduct of the proceedings under the Rules, such as set out in the general provisions, and the modification of time limits under the Rules once the case file has been transmitted to the Tribunal. From this follows a discussion of the conduct of the early stages of a DIAC arbitration (focusing in particular on the preliminary meeting), the service of written pleadings (including guidance on the law governing the merits and the withdrawal of claims), the presentation and hearing of fact and expert witnesses (including the burden of proof in DIAC arbitration), the appointment of Tribunal experts, and the closure, settlement, and/or termination of the proceedings. Lastly, this chapter also discusses the conduct of expedited proceedings, available to the parties under the Rules, and the consequences of the conduct of the proceedings by default, ie where a party fails to participate.